Silvester v. Kamala Harris CA 10 Day Wait

Vile Shadow · Dec 10, 2013

It may not be much, but it's something.

SRD · Dec 10, 2013

DavidMS said:
Regardless of the outcome, its pretty clear that the case for a 10 day waiting period for someone already possessing a firearm is weak. The question to me is how to attack the unconstitutional law. If Harris looses, the HQL regulatory regime becomes much harder to defend. Even though precedents set in this case won't apply to MD unless its appealed to the Supreme Court, the arguments will be useful to us.

Regardless of the outcome, it builds on the body of law regarding the 2nd amendment which for us is a good thing because it makes future cases easier.

That is what I could never understand.Okay fine,the state(s) wants a "cool-off-period" or time to see if someone is a nutcase or criminal,but if they already own a firearm,what's the point? :sad20:

adit · Dec 10, 2013

DavidMS said:
Regardless of the outcome, its pretty clear that the case for a 10 day waiting period for someone already possessing a firearm is weak. The question to me is how to attack the unconstitutional law.

The problem there is that you would now need to maintain a list of who has an evil gun, not that they don't already, but then it would be justified. It's not all good.....

Storm40 · Dec 10, 2013

don't worry, a higher court will overturn this "aberration" soon enough.

/pessimism

fxk · Dec 10, 2013

Denial of summary judgement. One step closer to a hearing..

spclopr8tr · Dec 10, 2013

Bravo said:
http://www.ammoland.com/2013/12/fed...rris-wrong-on-gun-control-laws/#axzz2n263ENZf

Can anyone put this into context?

It is right there in the linked article: "Court denies Harris’ arguments and agrees with gun rights group The Calguns Foundation, says state’s firearm waiting period laws fail to meet Constitutional muster."

Guns rights protected at this step, and waiting period ruled unconstitutional. One more case ruling for the good guys.

erwos · Dec 10, 2013

Geez. Guys, this is not a "case ruling". This is the judge denying summary dismissal against the Calguns suit. That's not a big deal to get in a case like this, and Ammoland is blowing it WAY out of proportion.

Mind you, this is a good thing in general, but let's not go crazy now.

Doctor_M · Dec 10, 2013

I'm starved for good news... will take it.

huesmann · Dec 10, 2013

erwos said:
Geez. Guys, this is not a "case ruling". This is the judge denying summary dismissal against the Calguns suit. That's not a big deal to get in a case like this, and Ammoland is blowing it WAY out of proportion.

Mind you, this is a good thing in general, but let's not go crazy now.

Yeah, it's only one a small step up the courts ladder.

Hopalong · Dec 10, 2013

The WPL as applied against those who have previously purchased firearms or who possess
certain state licenses is the equivalent of a prior restraint, and thus should be analyzed under strict
scrutiny

Brooklyn said:

I think this is the biggest win here, not actual the denial of the MTD. Once Strict Scrutiny is applied, judges higher up will have to work damned hard to get it kicked down a notch.

RightNYer · Dec 10, 2013

When a party requests summary judgment, he is in essence saying that there are no facts in dispute, and that the court can quickly make a ruling on the law alone. A denial just means that the court thinks that there are some facts that must be determined by a fact finder (in this case, the judge, as there will not be a jury).

Les Gawlik · Dec 10, 2013

erwos said:
Geez. Guys, this is not a "case ruling".

Procedurally, yes. But if you're in the business of reading tea leaves, this looks really good for the 2A. Judges can walk away from language like this when it comes to an opinion on the merits, but it doesn't happen all that often.

spclopr8tr · Dec 10, 2013

Some can find the black cloud around every silver lining. I prefer to take good news in however many small increments we can get them.

CypherPunk · Dec 10, 2013

Al Norris said:
Think about it for a minute, HT4.

You already have a handgun (or any other firearm). You passed the 10 day waiting period on that purchase. The State Knows this (the gun has already been through the process and is registered with the CA DOJ). What is the States rational reason for making you wait another 10 days to purchase another handgun (or any other firearm)?

It cannot be for a purported public safety purpose - you already possess a handgun (or any other firearm).
It cannot be for some sort of "cooling off" period - you already possess a handgun (or any other firearm).

The question being, under what rational basis does CA deny possession (for ten days) of firearms (after the purchase and transaction have been made) to anyone after the first waiting period has been served and subsequent purchases are made?

And to attack the State's existing policy from another direction...

The State should have a fiduciary duty to revoke the Handgun License of anyone disqualified to purchase.

Even if the state can't retrieve the physical license, a simple phone call by the seller to the state at the time of purchase asking, "is the handgun license valid" is all that's necessary.

That's how it's done in UT and other states with Concealed Firearms Permits.

Straightshooter · Dec 10, 2013

Who yanked down my Christmas stocking? It was here a minute ago.

erwos · Dec 10, 2013

Les Gawlik said:
Procedurally, yes. But if you're in the business of reading tea leaves, this looks really good for the 2A. Judges can walk away from language like this when it comes to an opinion on the merits, but it doesn't happen all that often.

People read way too much into the "tea leaves" around here, and basically see what they want to see... again, the standard to avoid summary dismissal is not high. It does not mean the case is a sure-fire win or whatever.

As for "finding a black cloud in a silver lining", Ammoland basically pronounced rainbows and butterflies on this one, which is ludicrous. It's a good first step, no more.

Tyeraxus · Dec 10, 2013

RightNYer said:
When a party requests summary judgment, he is in essence saying that there are no facts in dispute, and that the court can quickly make a ruling on the law alone. A denial just means that the court thinks that there are some facts that must be determined by a fact finder (in this case, the judge, as there will not be a jury).

<IANAL> It's my understanding that a denial can also mean that the undisputed facts do not support the law cited as the basis for the MSJ. For example, here California argues that under the facts, there is no burden on the 2A right from the 10 day wait requirement, and then takes the position that the regulation is acceptable under rational basis. The judge disagrees that the facts support a legal determination of no burden on the 2A.

If I'm reading right, it looks like the denial even says that there are facts in dispute, but using only the undisputed facts is enough to deny CA's MSJ.

I think the case is being set up for more IS treatment, but the denial of the MSJ at least gives me a little hope that they won't try to pull the "Rational Basis in Intermediate Scrutiny clothing" trick.

Tyeraxus · Dec 10, 2013

adit said:
The problem there is that you would now need to maintain a list of who has an evil gun, not that they don't already, but then it would be justified. It's not all good.....

Not necessarily. If you move from a "regulate the firearm" model to a "regulate the person" model, then all you have to do is require a one-time purchase license, with its own 10-day wait. Then the purchaser just shows the FFL the license, (optional: the FFL calls a state hotline to verify the number is valid), FFL conducts a NICS/state equivalent check, then the person walks out with his C&C firearm. State gets its "cooling off period," while people get to C&C whatever.

Obviously that only works if a waiting period isn't found unconstitutional across the board.

adit · Dec 10, 2013

Tyeraxus said:
Not necessarily. If you move from a "regulate the firearm" model to a "regulate the person" model, then all you have to do is require a one-time purchase license, with its own 10-day wait. Then the purchaser just shows the FFL the license, (optional: the FFL calls a state hotline to verify the number is valid), FFL conducts a NICS/state equivalent check, then the person walks out with his C&C firearm. State gets its "cooling off period," while people get to C&C whatever.

Obviously that only works if a waiting period isn't found unconstitutional across the board.

Kind of what I said. "keep a list of who has a gun"

Tyeraxus · Dec 10, 2013

adit said:
Kind of what I said. "keep a list of who has a gun"

Whoops, sorry, I completely misread what you wrote. You're absolutely right.

Silvester v. Kamala Harris CA 10 Day Wait

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